Beware bad law in attempt to kick out MSPs like Derek Mackay – leader commment

The shamed former Finance Secretary Derek Mackay should resign as an MSP after a prolonged absence from Holyrood, but a bid to enact ‘Mackay’s Law’, that would force him out, may have unintended consequences.

Derek Mackay, seen in 2018, should resign as an MSP forthwith (Picture: Andy Buchanan/AFP via Getty Images)
Derek Mackay, seen in 2018, should resign as an MSP forthwith (Picture: Andy Buchanan/AFP via Getty Images)

Calls for MSPs who fail to attend the Scottish Parliament for six months to be kicked out may appear, on the face of it, to have justice on their side. But, as ever, things may not be as simple as they first appear.

On the one hand, if someone is elected to be a “Member of the Scottish Parliament” but they never actually go there, it could be argued that they have effectively deselected themselves. And the case that has led to calls from the Scottish Conservatives for a six-month limit on absence – that of the shamed former finance secretary Derek Mackay, who has not voted at Holyrood or attended constituency surgeries since it emerged he sent 270 unsolicited text messages to a schoolboy – could hardly be more compelling. It is plain that Mackay should no longer be an MSP and should resign forthwith.

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However, this is an extreme and unusual case and there could be other reasons for a lengthy absence that would put the proposal in a different light.

For example, if a hard-working politician, well-respected in their constituency, fell seriously ill, would it be fair and reasonable to automatically expel them unless they were able to make a last-minute, tokenistic visit to Holyrood, perhaps in a wheelchair and attached to a drip?

The other main way to get rid of elected representatives no longer doing their job – or who have acted in such a way that they should no longer be allowed to – is the process of recall. This is an option to unseat MPs at Westminster and is also used in other countries around the world, including the US.

The problem is this can be open to abuse by political activists, particularly in marginal seats, unless precautions are taken to ensure that only the most obviously unfit politicians can be thrown out in this way.

MSPs do need some security of tenure because, sometimes, they have to take tough, unpopular decisions for the good of the country. If they constantly fear a Sword of Damocles hanging above their heads, they are likely to make decisions that are popular in the short-term but which may not truly be in the long-term, national interest.

So while Holyrood should consider the Tories’ proposals for the so-called “Mackay’s law”, they need to be careful of unintended consequences. And, after deliberating, they may conclude that an informal, but still powerful, method of getting rid of the worst MSPs – public shaming – remains the best strategy.

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